Uniform Civil Code

A constitutional vision still on hold.

“The debate on the Uniform Civil Code in India has passed through three phases which have been grounded in different normative concerns, that is, national consolidation, equality of laws, and gender justice.”¹ The concept of the Uniform Civil Code was introduced after Post Independence but its roots are in the struggle for independence. Earlier India was scattered into many sovereign republics, as a result, there was not any uniform civil code to govern them. But as soon as the British invaded India, they realized that there is a need for the codification of law. They were conscious regarding its implementation that’s why they decided not to interfere with the personal laws of Indians.
After the war of independence, Britishers again realized how concerned and deeply Indians are connected with their religion, as a result, they assured that they will scrupulously honor the religious beliefs and sentiments. Though there was also an ulterior motive behind it, as Britishers followed the policy of Divide and Rule, they were aware that if they try to indulge and try to bring a uniform law governing religion, it might backfire on them (increase the sense of unity between Indians).

We also need to observe the pre-1857 era, history clearly shows that there were different religions coexisting, and also the relationship between people was quite cordial. The social researcher also found out that there was a sizable majority of local Muslims who converted from the local population. As a result, they believed in Sufi Saints and followed their pre-conversion tradition.

A Constitutional Mandate-

The Uniform Civil Code (UCC) is trying to bring Unity in Diversity. The aim of this civil code is to introduce a uniform law that will govern the whole of India irrespective of religion, caste, or creed. But unfortunately, now it has become a trend that whoever supports the Civil Code gets termed as a communalist. It is also argued that UCC is just a disguise of a Hindu Personal Law trying to get it imposed on other communities of India. In reality, this argument doesn’t hold any water, as UCC was included in the Constitution before the Hindu Civil Code came into force. Neither our constitution framers nor UCC was trying to impose Hindu Law on the minority communities.

One of the major arguments which definitely should be taken into consideration is given by Scholar Asghar Ali Engineer that though there is a psychological barrier present, as soon as mutual understanding gets created, people will start looking at this concept from a rational and objective perspective, a mutual consensus will be created.

Our leaders who fought for the independence of our country want this Republic to be built on the four pillars of Justice, Liberty, Equality, and Fraternity. According to this belief, they formulated some ideas which the government must achieve in the future. These all principles were put under Part- IV of the Constitution with the title- “The Directive Principles of State Policy”. In this Instrument of Instruction, Uniform Civil Code was also inserted in Article 44 (draft Article 35) of the Constitution, which reads-

“The State shall endeavor to secure for the citizen a Uniform Civil Code throughout the territory of India.”

Also, we have to observe that while framing this law, there was a considerable amount of debate, but those who propagated and supported it were never placed as communists. The drafting committee submitted a report and the majority of members found the Uniform Civil Code desirable, but it was also said by them that it should be introduced on a voluntary basis. In this committee report three people took strong objection, they were Minoo Masani (Parsee), Rash Kumari Amrit Kaur (Christian), and Hansa Mehta (Hindu).

They argued that the factor which is an impediment to the growth of India is the existence of personal laws based on religion which keeps the nation divided into watertight compartments into many aspects of life. According to them, Uniform Civil Code should be granted to citizens within 5 to 10 years, the same as compulsory education has been granted under Clause 23. UCC should be shifted to Part-I after making suitable changes.

The difference between fundamental rights which are in Part III and the Directive Principle of State Policy in Part IV of the Constitution is that fundamental rights are justiciable in nature while Directive Principles are not justiciable. Simply it means that though they are not enforceable by the court of law, it shall be the duty of the state to apply these principles in making the laws.

Our leaders were visionary and had great foresight. They were aware that India is a developing nation, and is still evolving. But the principles that are mentioned in the instrument of instruction are necessary to apply in our country for generating a belief of unity.

Many times, questions are raised about the importance of Directive principles, because as of now it does not have a legal mandate. Our father of the constitution, Dr. B.R. Ambedkar tackled this situation in a very logical and critical manner. He admitted that for now, directive principles are not having legal force. But neither it is acceptable to say that it is not having a binding force at all, nor it is useless like a toothless tiger. We need to understand that these principles are created so that no government in the future can arbitrarily use the powers. The government cannot ignore them, they might not be answerable to the court of law, but they would definitely be answerable to the people of the country. Its great value will be realized as soon as it comes into force.

Mr. P.C. Chaterjee was also of the opinion that if directive principles are ignored then it will lead our country to move in a backward direction. His words came true after the “Shah Bano’s case² with the introduction of Muslim Women (Protection of Rights on Divorce) Act in 1986”.

The value of the directive principle cannot be undermined. It is usually argued that they are more of a moral code than a law. And to some extent, this argument holds value too. But we cannot ignore that it is more of a mandate than a penal code. Our constitution had set some guidelines for the state to abide by. Whether they follow them or not is a philosophical question.

Law and Religion (Dichotomy)-

It is a belief that law exclusively originates from religion, but this is not true. In reality, religion is a medium that connects man with God. Religion is not a synonym for Dharma (Duty). As per Hinduism, duty leads to creating certain principles called ethics (uncodified rules). If we talk about the basis of ethics, religion can be considered; but they are separated. According to Jurisprudential theory, law originated from social ethics, and these ethics take charge of different aspects of human life. Even in Islam, this belief is prevalent. Furthermore, in the opinion of Muslim thinkers, their personal laws directly originated from the holy Quran. Because of this reason, they are divine in nature, cannot be touched, and are immutable by the legislature.

Even in our Constituent Assembly, a heavy discourse happened regarding this conundrum, and after deep critical analysis, they came to the conclusion that laws did not originate from religion. From then a lot of decades have already passed but still, this poser keeps on arising again and again. The legislature has full power to enact Common Civil Code for its citizens.

In the book “A Modern Approach to Islam”, eminent Jurist Professor A.A.A. Faizi explained that laws are not personal, and they are objective in nature. It is the responsibility of the state to apply it without any exceptions. A person should not get confused between the rule of law that is enforced by the state and the rule of conscience which is man’s own personal belief.

Different views of scholars on the Uniform Civil Code-

Miss Sadhona, Ms. Radhika, and Miss Jotsna Chaterjee, members of the Young Women’s Christian Association (Y.W.C.A), observed that many of the female members in their community are from different walks of life, and are having a great awareness about the UCC. Particularly, Christian members in their association want UCC to be implemented. Even in 1986, Y.W.C.A. passed a resolution in the support of the UCC. During 1976, a lot of communal riots happened, and according to Miss. Jotsna, the reason behind this is that many communities are demanding separate personal laws to govern them, considering the diversity of India, now it has become more important to bring uniformity in personal laws.

In 1976, at the Women’s Programme Conference, a few Muslims with Mr. Tahir Mohammed was of the opinion that it is not the correct time to enact Uniform Civil Code, for now, the focus should be on codifying their personal laws. Christian participants who were present at the conference also demanded the same for their personal laws. But they too came to the conclusion that riots happened because of the different personal laws, and the solution to stop them from happening in the future is UCC.

Mr. P.C. Chaterjee’s observation also matters here, he explained that the more we wait to apply the Uniform Civil Code, the more problems and fault lines will be created in the unity of the country, as we can see the growing demand for our own personal laws from Lingayats, Sikhs, etc. Even if we take the case of our neighbor, Pakistan, they too are facing problems, Muslims are splitting up, and Sunnis are declaring other sects like Ahmedias and Shias as non-muslims.

Mr. Bhagwandas, a Buddhist Advocate, argued the point that Neo-Buddhist never demanded personal laws. They are also the sect, who are in need of a Uniform Civil Code. They are majorly divided into three groups:

i. Buddhist are those who are living in North-East and North-West India.

ii. Small groups are found in Tamil Nadu, Kerala, Rajasthan, and Orissa.

iii. The people who embraced Buddhism after the call from Dr. B.R. Ambedkar.

Due to this, there was a lot of ambiguity in the customary laws, and this led to rising demand for the UCC.

Ashgar Ali Engineer, a Muslim Social Reformer, stated a few points regarding UCC-

i. For now this topic is communalized a lot, and due to this, there are a lot of misunderstandings between Muslims and Hindus, and that need to be cleared first.

ii. We are lacking a proper draft that will help us to have a debate in this area systematically and properly.

iii. He suggested that Uniform Civil Code that is enacted in Goa should not be disturbed. Though he mentioned some areas like laws of inheritance that are a non-negotiable part of Muslim laws.

Mr. K.J. Gandhi, Secretary of the Federation of Parsi Zoroastrian Anjuman of India, believed that though Uniform Civil Code is a good step, in the current context it is not feasible. Firstly, in Parsee conversion is prohibited, but it is allowed in other religions. Secondly, Parsees would not like to adopt a Non-Parsi child, as only a Parsi is entitled to visit a fire temple. Thirdly, the Parsees' rituals regarding marriages should be protected.

Mr. Kolet, a Jew, representing his community was of the opinion that the prohibition of the degree in marriage should be declared frivolous, as his community is very less in number, so this step will make sure that the community remains tact.

These views of different communities are proof that there are a lot of problems in the personal laws in India, and a majority of them think that it can only be solved with the help of the Uniform Civil Code.

Maintenance and Adoption- Social Concepts-

Part-1: Maintenance

It is an undeniable fact that maintenance affects finances, and that’s the reason why it is considered a burden. But the way it is looked at by society needs to be changed. Generally, it is a weaker section that requires maintenance, like old parents, and spouses who spent their life for the welfare of their companions, and children. When we talk about charities, then indeed it should not be forced, as it is a question regarding morality, but when it comes to maintenance, it should be treated as an obligation or duty, as most of the time all the people who are seeking maintenance have spent and contributed a significant amount of effort with them.

Let’s take an example of a marriage in Hindu, though, in Hindus, marriage is treated as a mixture of sacrament and contract. But even viewing it simply as a contract, when there is a unilateral breach in marriage. Don’t you think that the aggrieved party should get something, according to the basic principles of the contract? When two people marry each other then there is a safe bio bubble surrounding them, and with the ultimate breakdown of marriage, sometimes one of the spouses is in desperate need of maintenance so that he/she can be kept safe. Here the consideration is ethical in nature. People sacrifice their youth for the welfare of their other spouse, for that at least they deserve a token of redemption.

The rigid nature of Muslim Women (Protection of Rights on Divorce) Act, 1986 (MW Act)³ This act was introduced after there was a significant outcry against the Shah Banu Judgement. And it was certainly introduced to reduce the power given under secular law (Section 125 of the Criminal Procedural Code). Section 3(2) of this act discusses the maintenance of Muslim women after the iddat period and who is unmarried. But the order for payment of maintenance in Section 4 covers her relatives and parents. And there is unquestionably no liability on her former husband. Though in Haj v. Amina⁴, the act was interpreted in a liberal manner, we cannot deny its stubborn nature.

Section 5 indirectly takes the rights of Muslim women to approach the Court of Law under Section 125 of CrPC, as it adds a condition that it is important for a woman to take consent of a former husband to move with this section, making the powers of it like a toothless tiger. This is the main quandary the Supreme Court failed to take into account in Danial Latifi v. Union of India⁵, that’s why they held that the MW act cannot be declared unconstitutional, as it is similar to Section 125 of the CrPC only.

Geeta Mukherjee, Ex-Member of the Parliament shared her experience that once she met a Qazi, who were having 6 daughters, and the eldest daughter got divorced within a short period of time, due to the Muslim Women (Protection of Rights on Divorce) Act, she was not able to claim maintenance from her husband under section 125 of the CrPC. He explained that already he is not able to take care of her 5 daughters, now due to divorce one more member is included again, and this leads making their condition worse. He termed this act not “as a Protection Bill” but as a Muslim Women's Qatal (Slaughter) Bill.”

We also need to consider that classification done here is not based on intelligible differentia as there is no difference between Muslim divorced women and divorced women of any other religion. Hence, it can be said that apart from realizing the importance of the Uniform Civil Code, this act is gender bias, and violative of Articles 14, 15, and 21 of the Constitution of India.

Maintenance Laws are gender neutral but their interpretation is seen as discriminatory Under Section 24 of the Hindu Marriage Act, 1955⁶ , if it is found that the husband is incapable to maintain himself or is not having sufficient funds then he can claim maintenance. Also, under section 25 of this act, a husband can claim permanent alimony and maintenance. But its application is very distinct as compared to a law, like in the case of Nivya V M v. Shivaparsad M⁷, the Kerala High Court held that if the husband is providing Maintenance in the absence of incapability for him to work, it will promote idleness. The husband has to prove that he is permanently disabled to work and earn; only then can he claim Maintenance. Even in Kamelandra Sawarkar v. Kamelandra⁸, the Bombay High Court held that the husband could not depend wholly on the wife’s income. He needs to do the work according to his skills.

Part-2: Adoption

Adoption is one of those fictions of law that have been marshaled for the furtherance of the individual interest.⁹ It is a legal proceeding that creates a parent-child relation between persons not related by blood. It is the dawn of civilization. Not only does it bring happiness to the life of couples who adopt, but also secures the life of that adopted child. The reason for adoption can vary from person to person, some want to adopt to secure the performance of one’s funeral rites, and some want to adopt to preserve the continuance of one’s lineage. Still, there is an existence of personal laws which either prohibit it in terms of religion or bar it completely.

The concept of adoption is opposed by some Muslims as anti-Islamic, and to prove that they rely on Ayyats 4 and 5 of the holy Quran-

“God has not made two hearts in his (one) body; nor has he made your wives whom ye divorce by Ziha your mothers; nor has he made your adopted sons your sons. Such is (only) your (manner of speech). By your mouths. But God tells (you) the Truth, and He shows the right way.”

Now it is interpreted in two ways, according to the first interpretation, adoption is prohibited completely or totally. And according to the second interpretation, adoption is valid, as because Zaid was the adopted son of the Prophet, that’s why he was able to marry her. This means that marrying a wife of a natural-born son is prohibited according to the Quran, but this is not the case if it is the adopted child’s wife.

According to the Hindu Adoption and Maintenance Act, a Hindu couple can adopt only a Hindu child, and children from another religion are not allowed to adopt. Also, a Hindu Couple is not permitted to adopt a child the same as their biological one, even if you are trying to save the life of an abandoned child, you need to fight a legal battle to become his legitimate parent.

In the matter of adoption of Re: Adoption Of Payal @ Sharinee Vinay Pathak And His Wife Sonika Sahay @ Pathak Vs. High Court of Bombay (India)¹⁰, the Court held that Adoption comes under the ambit of Article-21 (Right to Life). Frequently it is also given an argument by the judges that if a Muslim or Hindu Couple faces any problem in adoption, then they should rely on Juvenile Justice Act¹¹ as it works like a secular provision. But what the court is missing here is that not everyone has a knowledge of the law properly, and it becomes a cumbersome task for then couples to adopt. So we can conclude and say that here also we found how important Uniform Civil Code becomes.

Need to rise above stagnation-

In Muslims, polygamy is allowed, so in the past, many people just for the sake of practicing this concept used to get converted into Islam. This leads to the exploitation of personal laws. Thanks to the landmark judgment given by the Supreme Court in Sarla Mudgal v. Union of India¹² which explicitly stated that conversion will not be allowed just for the sake of the marriage. This judgment definitely decreased the exploitation of personal laws, but it was not able to stop it in totality, as finding the intention of a person can be a herculean task, and still, some people try to find the loopholes in the law, like in Lily Thomas v. Union of India, the husband changed his name for the purpose of marrying. As a result, the wife filed the petition, and Supreme Court declared his acts illegal and consider him guilty of Bigamy.

If we look at the Indian Divorce Act¹³ of Christians certain problems still exist, like earlier in the case of desertion there was a provision for the “reasonable excuse” but after the amendment, it was removed (though legislators ignored the fact that sometimes there can be a genuine reason also).

Section 10 of the Indian Divorce Act is discriminatory against Christian women, as they need to show a lot of proof to get a divorce than men. And section 10A (1) provided a provision that at least 2 years should be completed before seeking a divorce. If we compare it with other personal laws like Hindu Marriage Act where the minimum condition is one year, we will infer how vague that section is! Even in the Albert Anthony case, the Supreme Court questioned the legislature why didn’t they reduce the time gap. The answer of the Centre Government was that they require a consultation with the state government, then only they will be able to amend it.

According to the explanation part in Section 7 of the Hindu Adoption and Maintenance Act¹⁴-

“If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.”

Now, this particular section’s explanation is problematic in two ways, firstly it is indirectly recognizing bigamy/polygamy which is completely barred under Hindu Marriage Act, 1955, and secondly, it is gender discriminatory too (no provision or explanation like “if a person has more than one husband...” is present).

Moving forward, we are soon going to complete 4 years since Section 377 of the Indian Penal Code which was held violative of the Fundamental Rights of LGBTQ as it use to criminalize homosexuality was struck down in the landmark decision of Navtej Singh Johar v. Union of India¹⁵ was passed. But still, LGBTQ couples are not allowed to marry each other by law (there is no existing secular or personal law by which they can marry). Thus, with the introduction of the

Uniform Civil Code this problem which is violative of basic Fundamental Rights under Articles 14 and 21 can be solved.

Conclusion

After analyzing a few aspects of this vast area. There should be no doubt in anybody’s mind that it would not work. To achieve this constitutional goal, it is imminently imperative to do away once and for all the cofounded prejudices and notions of the people. The best provision from every available system of personal law should be nitpicked. To remove the biases from the provisions of the UCC, the Judiciary should step in, and recommend the parliament form a committee like the

Finance and Law Commission. This committee must consist of eminent jurists, and the draft, therefore, has to accommodate diversities that exist in the personal laws. For example, the rules regarding the prohibited degrees of relationship are different in Muslim Personal Law from those in the Hindu.

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1. Peter Ronald Desouza, Politics of the Uniform Civil Code in India, Economic and Political Weekly, Vol. 50, No. 48 (NOVEMBER 28, 2015).

2. 1985 AIR 945, 1985 SCR (3) 844.

3. Muslim Women (Protection of Rights on Divorce) Act, No. 25 OF 1986 INDIA CODE (1993).

4. 1995 CriLJ 3371.

5. 2001 SCC 740.

6. Hindu Marriage Act, No. 25 of 1955, INDIA CODE (1993)

7. 2017 (2) KLT 803

8. 1992 Bom 493

9. Dr. Paras Diwan, Family Law (Hindus, Muslims, Christians, Parsis, and Jews) (12th ed. 2021)

10. 2010 (1) BomCR 434, 2009 (111) BomLR 3816

11. Juvenile Justice Act, no. 56 of 2000, INDIA CODE (1993)

12. 1995 AIR SC 1531

13. The Divorce Act, no.4 of 1869, INDIA CODE (1993)

14. The Hindu Adoption and Maintenance Act, no. 78 of 1956, INDIA CODE (1993)

15. AIR 2018 SC 4321